State of Alaska, Joel v. Native Village of Tanana

March 4, 2011

STATE OF ALASKA, JOEL GILBERTSON IN HIS OFFICIAL CAPACITY AS ALASKA COMMISSIONER OF HEALTH & SOCIAL SERVICES, MARCIA KENNAI, IN HER OFFICIAL CAPACITY AS DEPUTY COMMISSIONER OF THE OFFICE OF CHILDREN'S SERVICES, PHILLIP MITCHELL, IN HIS OFFICIAL CAPACITY AS CHIEF OF THE ALASKA BUREAU OF VITAL STATISTICS, AND GREGG RENKES, IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL, APPELLANTS,v.NATIVE VILLAGE OF TANANA, DAN SCHWIETERT, THERESA SCHWIETERT, NULATO VILLAGE, VILLAGE OF KALSKAG, AKIAK NATIVE COMMUNITY, VILLAGE O F LOWER KALSKAG, AND KENAITZE INDIAN TRIBE, APPELLEES.

Supreme Court No. S-13332 Superior Court No. 3AN-04-12194 CI Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, John Suddock and Sen K. Tan, Judges.

The opinion of the court was delivered by: Winfree, Justice.

Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER. Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email corrections@appellate.courts.state.ak.us.

In this case we revisit ripeness and tribal sovereignty decisions intersecting in a dispute between the State of Alaska and a number of Alaska Native tribes. Procedurally, we are asked whether the narrowed view of ripeness announced in Brause v. State, Department of Health & Social Services*fn1 and recently applied in State v. ACLU of Alaska*fn2 requires dismissal of this case without reaching its merits. Substantively, we are asked (1) whether the inherent sovereign jurisdiction of Alaska Native tribes recognized over a decade ago in John v. Baker*fn3 includes the initiation of "child custody proceedings" as that term is used in the Indian Child Welfare Act (ICWA), and (2) if so, whether tribal court judgments in those proceedings are entitled to full faith and credit by the State.

We conclude that this dispute is ripe for a limited decision, acknowledging that further refinements and qualifications must arise from future adjudications based on specific factual scenarios. Today we decide that (1) federally recognized Alaska Native tribes are not necessarily precluded from exercising inherent sovereign jurisdiction to initiate "child custody proceedings" as ICWA defines that term, and (2) judgments issued in those proceedings may be entitled to full faith and credit by the State under ICWA. But lack of specific facts precludes us from defining the extent of any individual Alaska Native tribe's inherent sovereign jurisdiction to initiate "child custody proceedings" or the standards for determining which judgments would be entitled to full faith and credit by the State.

II. PROCEEDINGS

Native Village of Tanana (Tanana), Nulato Village (Nulato), Akiak Native Community (Akiak), Village of Kalskag (Kalskag), Village of Lower Kalskag (Lower Kalskag), and Kenaitze Indian Tribe (Kenaitze) are recognized as Indian tribes by the United States Department of the Interior,*fn4 and all but Kenaitze are listed as "Alaska Native villages" under the Alaska Native Claims Settlement Act (ANCSA).*fn5 In this opinion, we refer to the tribal appellees collectively as "the Tribes."*fn6

In late October 2004 the Tribes*fn8 sued the State of Alaska and -- in their official capacities -- the Attorney General and heads of the Office of Children's Services (OCS), Bureau of Vital Statistics (BVS), and Department of Health and Social Services (DHSS), collectively "the State." The Tribes alleged that based on an October 1, 2004 opinion letter from then-Attorney General Gregg Renkes (2004 Attorney General Opinion), the State adopted a policy and began taking official action to interfere with tribal rights under ICWA and to deny full faith and credit to tribal adoption decrees and orders issued in tribally initiated child protection cases. The Tribes sought declaratory relief recognizing that Alaska Native tribes "possess inherent and concurrent jurisdiction to adjudicate children's proceedings and issue tribal court decrees" and injunctive relief forcing "the [S]tate and its agencies to grant full faith and credit to tribal court decrees as required by law."

In late December 2004 the State moved to dismiss the suit on ripeness grounds. In response the Tribes moved for leave to file an amended complaint in early January 2005, which the State opposed on ripeness and futility grounds. The superior court granted the Tribes' motion in early March 2005 and accepted the amended complaint. After oral argument Superior Court Judge John Suddock subsequently denied the State's dismissal motion from the bench, stating in part:

[A]s the pleading[] says, the tribal courts are behaving as if they have original jurisdiction in these matters. They are actually adjudicating them and they are placing children based on them and the [S]tate is here saying . . . ["]that's void. Those courts are [a] nullity. Any of those parents could go get those children back and not be in violation of a binding court order because it's void ab initio.["] Strikes me that that's a bad situation, that there is a very ripe question for a review: whether or not the Attorney General ever put pencil to paper . . . there is a network of tribal courts out there that has assumed a jurisdiction beyond . . . what the [S]tate contends is proper. Ordinary citizens are being affected. Children are being affected. It seems to me that there is a ripe question for declaratory judgment.

In November 2005 the Tribes moved for partial summary judgment on the legal issue of Alaska Native tribes' "inherent sovereign authority . . . to adjudicate children's proceedings." The State opposed the Tribes' motion and cross-moved for summary judgment, arguing that the 2004 Attorney General Opinion accurately interpreted existing Alaska case law and that the Tribes "do not possess the inherent authority to initiate child protection cases."

Superior Court Judge Sen K. Tan granted the Tribes' motion for partial summary judgment in May 2007, ruling that "tribes retain concurrent jurisdiction to legislate, to initiate, and to adjudicate [child in need of aid] cases in tribal courts." Upon the State's urging that the partial summary judgment granted the Tribes all the relief requested in their amended complaint, Judge Tan issued a final judgment on August 26, 2008.

The relevant language from the declaratory judgment portion of the final judgment is as follows:

2. [The Tribes] are entitled to access . . . confidential reports and other documents in the possession of [OCS] concerning their member children.

3. [The Tribes] are entitled to full faith and credit under 25 U.S.C. § 1911(d) for their public acts, records, and judicial proceedings to the same extent that the State . . . gives full faith and credit to the public acts, records[,] and judicial proceedings of any other [s]tate.

The final judgment also enjoined the State from: (1) implementing the 2004 Attorney General Opinion by adopting policies or regulations; (2) relying on, enforcing, or carrying out any mandate based on the 2004 Attorney General Opinion that is contrary to the superior court's decision; (3) denying full faith and credit to the Tribes' determinations in ICWA-defined child custody proceedings; (4) refusing to notify the Tribes of reports of harm and provide such reports of harm for investigation; and (5) denying the Tribes information they otherwise are entitled to receive under ICWA.

The State appeals.

III. STANDARD OF REVIEW

We evaluate de novo the issue of ripeness.*fn9 We evaluate de novo the scope of tribal jurisdiction and the meaning of federal statutes.*fn10 Under de novo review, we apply "the rule of law that is most persuasive in light of precedent, reason, and policy."*fn11

IV. DISCUSSION

Today's decision requires a review of: ICWA; Alaska and federal decisions regarding Alaska Native tribal sovereignty over ICWA-defined "child custody proceedings"; John v. Baker; and the State's reaction to John v. Baker both prior to and after October 1, 2004. This backdrop provides the necessary context for us to ...

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